Citation Nr: 22014761 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 19-06 015 DATE: March 15, 2022 REMANDED Entitlement to service connection for thoracic spine central disc bulge at T2-T3 is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a left wrist condition is remanded. Entitlement to an initial compensable rating for service-connected traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. INTRODUCTION The Veteran served honorably on active duty in the United States Army during the Gulf War Era, from July 2005 to March 2013, including service within Afghanistan and the Southwest Asia theater of military operations. He received the Combat Action Badge among other medals and decorations. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2014, February 2015, and May 2015 Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran appeared and testified before the undersigned Veterans Law Judge (VLJ) via videoconference hearing from the Denver, Colorado RO. A transcript of the hearing is of record. As an initial matter, the Veteran's Notices of Disagreement (NODs) dated October 2014 and March 2015 specifically requested initial compensable ratings of 10 percent each for service-connected left acromioclavicular arthrosis and left knee iliotibial band syndrome, and an increased initial rating of 50 percent for other specified trauma and stressor-related disorder, respectively. Thereafter, a Rating Decision dated December 2018 granted the Veteran's increased initial rating claims by awarding the ratings specifically requested. Because that decision represents a full grant of the benefits sought, these issues are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). REASONS FOR REMAND Entitlement to service connection for thoracic spine central disc bulge at T2-T3 is remanded. The Veteran contends he possesses a thoracic spine condition due to an injury sustained from an improved explosive device (IED) blast during active duty service. He testified to experiencing back pain "off and on since about 2010, when it really started." Service treatment records (STRs) dated January 2009 through November 2012 report the Veteran endorsed back pain, specifically, in the mid-back. In January 2009, physical examination revealed tenderness from T2-T6. The Veteran has undergone two VA medical examinations related to this matter, specifically, in May 2014 and May 2015. The Board finds the VA examination reports inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In light of the Veteran's testimony, the Board finds remand is required to afford the Veteran another VA examination and to procure a medical nexus opinion adequate for adjudication purposes. Entitlement to service connection for a neck condition is remanded. The Veteran argues he possesses a neck condition due to being hit in the neck with a .50 caliber weapon and an armored door. He testified to experiencing neck pain "off and on since about 2010, when it really started." The RO denied the Veteran's claim based, in part, upon a lack of a current "clinically diagnosed" neck disability. An STR dated December 2010 indicates the Veteran endorsed pain located between the neck and left shoulder joint. Due to left arm weakness, diagnostic imaging of the cervical spine was conducted in November 2012, which revealed no significant bony or disc space findings. In May 2014, the Veteran underwent a VA examination related to this matter. The Board finds the VA examination report inadequate for adjudication purposes. See Barr, 21 Vet. App. 303. In light of the Veteran's testimony, the Board finds remand is required to afford the Veteran another VA examination and to procure a medical nexus opinion adequate for adjudication purposes. Entitlement to service connection for a left wrist condition is remanded. The Veteran contends he possesses a left wrist condition due to jamming it into a gunner's handle during a truck accident. The Veteran testified he is diagnosed with carpal tunnel syndrome (CTS) and has numbness and diminished strength in his hand. The RO denied the Veteran's claim based, in part, upon a lack of a current "clinically diagnosed" left wrist disability. According to STRs dated June 2010, the Veteran endorsed intermittent left upper extremity distal paresthesias. STRs dated December 2010 and January 2011 report an incident wherein the Veteran endorsed being injured, albeit not the left wrist, by a gunner's joystick. Additionally, STRs dated November 2012 report left hand numbness. VA treatment records indicate the Veteran presented to the Gainesville VA Medical Center (VAMC) in December 2016 endorsing wrist pain, and subsequently received treatment in the form of Lidocaine topical cream. VA treatment records at least as far back as June 2016 include paresthesias of the hand among the Veteran's active problems. In May 2014, the Veteran underwent a VA examination related to this matter; however, the Board finds the VA examination report inadequate for adjudication purposes. See Barr, 21 Vet. App. 303. Specifically, while the VA examiner reports the Veteran's left wrist examination as "normal" and does not provide a medical nexus opinion, the examiner's report is silent regarding the above-referenced STRs noting left upper extremity numbness. Moreover, the VA examiner's report lacks discussion of any medical explanation for the Veteran's competent statements regarding left wrist weakness, loss of strength, numbness of the middle two fingers, and pain when leaning on the wrist. See Dalton v. Peake, 21 Vet. App. 23 (2007) (a medical opinion which does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination, is inadequate). Based upon the foregoing, and in light of the Veteran's testimony, the Board finds remand is required to afford the Veteran another VA examination and to procure a medical nexus opinion adequate for adjudication purposes. Entitlement to an initial compensable rating for service-connected TBI is remanded. The Veteran seeks entitlement to an increased initial rating for service-connected TBI, which has remained rated as non-compensable throughout the pendency of this appeal. VA treatment records dated January 2014 indicate the Veteran reported endorsed memory problems involving numbers and remembering where he has laid objects down. Also, a VA treatment note dated February 2014 reports subjective mild short-term memory impairments and assess photosensitivity. The Veteran underwent a VA examination in June 2014 related to this matter; however, the Board finds the VA examination report inadequate for adjudication purposes. See Barr, 21 Vet. App. 303. Specifically, although the VA examiner notes the Veteran endorses having "intermittent headaches" since 2008 and "short term memory" issues, without explanation the examiner reports no complaints of impaired memory or other subjective symptoms. See Dalton, 21 Vet. App. 23 (a medical opinion which does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination, is inadequate). Additionally, the VA examiner summarily concludes that the Veteran's TBI has resolved with no residuals. See Miller, 11 Vet. App. at 22 (bare conclusions, even those reached by healthcare professionals, are not probative without a factual predicate in the record). Based upon the foregoing, and in light of the Veteran's testimony, the Board finds remand is required to afford the Veteran another VA examination and to procure a medical nexus opinion adequate for adjudication purposes. Entitlement to a TDIU is remanded. The Board finds the Veteran's claim for entitlement to a TDIU is inextricably intertwined with the service connection and increased rating claims being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, adjudication of this claim will be deferred until further development of the inextricably intertwined issues is completed. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an in-person VA orthopedic examination with a physician WHO HAS NOT PREVIOUSLY OFFERED AN OPINION IN THIS MATTER and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's claimed thoracic spine condition(s) to include central disc bulge at T2-T3, neck condition(s), and left wrist condition(s). The examiner MUST obtain a full history from the Veteran. THE VETERAN IS COMPETENT TO ATTEST TO FACTUAL MATTERS OF WHICH HE HAS FIRST-HAND KNOWLEDGE, such as in-service events and observable in-service and post-service symptomology and functional limitations. All pertinent symptomology and functional limitations, including when initially manifested and any progression, MUST be elicited from the Veteran and reported in detail. Any indicated studies MUST be performed. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner MUST offer an opinion based upon an accurate medical history, with clear conclusions and supporting data and a reasoned medical explanation connecting the two, as to the following: (a.) Whether it is AT LEAST AS LIKELY AS NOT (i.e., 50 percent probability or greater) any of the Veteran's thoracic spine conditions, to include central disc bulge at T2-T3, manifested during active duty service or within one year of discharge; OR is due to, related to, or otherwise etiologically associated with an in-service injury, event, or disease; OR is proximately due to, related to, or otherwise etiologically associated with or aggravated by a service-connected disability, to include left acromioclavicular arthrosis. (b.) Whether it is AT LEAST AS LIKELY AS NOT (i.e., 50 percent probability or greater) any of the Veteran's neck conditions manifested during active duty service or within one year of discharge; OR is due to, related to, or otherwise etiologically associated with an in-service injury, event, or disease; OR is proximately due to, related to, or otherwise etiologically associated with or aggravated by a service-connected disability, to include left acromioclavicular arthrosis. (c.) Whether it is AT LEAST AS LIKELY AS NOT (i.e., 50 percent probability or greater) any of the Veteran's left wrist conditions manifested during active duty service or within one year of discharge; OR is due to, related to, or otherwise etiologically associated with an in-service injury, event, or disease; OR is proximately due to, related to, or otherwise etiologically associated with or aggravated by a service-connected disability, to include left acromioclavicular arthrosis. The examiner is advised that aggravation does not require a permanent worsening of the condition, but rather, any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner is also advised that evidence of pain alone which results in functional impairment, even if there is no underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). In offering the above opinions the examiner MUST consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to, the following: (a.) STRs dated January 2009 through November 2012 reporting the Veteran endorsed back pain, specifically, in the mid-back; (b.) January 2009 VA treatment note revealing tenderness from T2-T6; (c.) diagnostic imaging dated November 2012 revealing small central disc bulge at T2-T3; (d.) STR dated December 2010 indicating the Veteran endorsed pain located between the neck and left shoulder joint; (e.) the Veteran's March 2021 testimony regarding being injured by an IED and hit in the neck with a.50 caliber weapon and an armored door, and experiencing back and neck pain "off and on since about 2010"; (f.) STRs dated June 2010 and November 2012 wherein the Veteran endorsed left upper extremity numbness; and (g.) VA treatment records dated December 2016 noting wrist pain and subsequent treatment with Lidocaine topical cream. The examiner is advised that while a lack of supportive medical evidence is a relevant factor, the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of causation, onset, and symptomology MUST be considered and discussed. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and as warranted, supportive medical literature must be provided. 2. Schedule the Veteran for an in-person VA examination with a physician WHO HAS NOT PREVIOUSLY OFFERED AN OPINION IN THIS MATTER and possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran's service-connected TBI for the entire period on appeal (i.e., from June 2014). The examiner MUST obtain a full history from the Veteran. THE VETERAN IS COMPETENT TO ATTEST TO FACTUAL MATTERS OF WHICH HE HAS FIRST-HAND KNOWLEDGE, such as observable symptomology and functional limitations. All pertinent symptomology and functional limitations, including when initially manifested and any progression, MUST be elicited from the Veteran and reported in detail. Any indicated studies MUST be performed. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner MUST offer an opinion based upon an accurate medical history, with clear conclusions and supporting data and a reasoned medical explanation connecting the two, providing a full description of the Veteran's service-connected TBI residuals including any occupational restrictions and all signs and symptoms necessary for evaluating his disability under the rating criteria for the entire period on appeal. In offering the above opinions the examiner MUST consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to, the following: (a.) VA treatment records dated January 2014 indicating the Veteran reported memory problems; (b.) VA treatment note dated February 2014 reporting subjective mild short-term memory impairments and photosensitivity; and (c.) VA treatment note dated May 2017 reporting "there may also be confusion and perplexity and cognitive inefficiencies." A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and as warranted, supportive medical literature must be provided. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.